The Right Move

February 01, 1989

Sen. Robert Scott of Newport News has not been wearing the most comfortable shoes recently. The debate over the membership of local judges in the James River Country Club, specifically Scott's refusal to sponsor the reappointment of Judge Douglas Smith so long as he belonged to the club, has put a lot of pressure on the senator, and the point has been raised that his stance could hurt him at the polls.

Smith's friends say he has been a fine judge and that there is no evidence that his actions on the bench have been biased. We agree with that assessment. And so does Scott, but, as the senator points out, the issue goes beyond that.

The foundation of the American judicial system is fairness. Defendants must believe that when they come before a court they can receive a fair trial. If the perception of fairness is lost, the foundation is weakened if not destroyed. A judge cannot belong to a club that excludes black members, and then deny that his membership "may give rise to perceptions" by blacks - and perhaps others as well - that his impartiality is "impaired." Faith in the system - perceptions - is all important.

The language quoted above is not something formulated by Scott or the NAACP. It comes from the code of ethics of the American Bar Association, which says quite plainly that judges should not belong to organizations that practice "invidious discrimination." It doesn't say it's OK to belong to a discriminatory club if you're working to change the membership policy.

There can be quibbling about the definition of "invidious," but that would serve only to obscure the fact that the James River Country Club can go a long way toward ending this debate simply by admitting black members. That hasn't happened, and that's why Scott was put in the tough spot of having to stand up for a principle that many people probably wish he had ignored, or perhaps just bent a little, just this once.

We're glad he didn't. Perhaps it would have been more politick had Scott made a big display about how difficult it was to defend the principle regarding club membership knowing that doing so could hurt a good judge. But, the fact is, Smith's fate was always in his own hands. All he had to do was resign from the club, and that's what he did.

When a person is on trial in a court of law, his fate is no longer in his own hands. It depends heavily on the competence of his lawyer and on the fairness of the judge. It's of immeasurable benefit to society that everyone can believe fairness is possible. Scott understands that and was willing to stick his neck out for it. That's to everyone's benefit and to Scott's credit.